Nothing is Defying Intestacy Like a Last Will in Indonesia

When it comes to inheritance, you and I both know it’s a sensitive topic. 

It’s not just about money or property. It’s about family, relationships, and the legacy you leave behind. In Indonesia, the rules around inheritance can be complex, especially when someone passes away without leaving a will. This is what we call intestacy. But here’s the thing: nothing defies intestacy like a last will. 

Let’s dive into why having a will is so important in Indonesia and how it interacts with the legal framework, including the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law.

What Happens Without a Will?

First, let’s talk about intestacy. 

If you were to pass away without a will, your assets would be distributed according to the default rules set by Indonesian law. These rules are outlined in the Civil Code for non-Muslims and the Islamic Compilation Law (Kompilasi Hukum Islam, or KHI) for Muslims. The 1974 Marriage Law also plays a role, especially in defining marital property.

Under the Civil Code, the inheritance is divided among heirs in a specific order. The first priority goes to the spouse and children. If there are no children, it moves to the parents and siblings, and so on. This might sound straightforward, but it doesn’t always align with what you might want. For example, what if you want to leave a portion of your estate to a close friend or a charity? Without a will, that’s not going to happen.

For Muslims, the Islamic Compilation Law applies. It follows the principles of Faraid, which is the Islamic law of inheritance. Under Faraid, the distribution is also predetermined, with specific shares allocated to heirs like the spouse, children, and parents. While this system is rooted in religious principles, it can still leave little room for personal wishes.

The Role of the 1974 Marriage Law

Now, let’s bring the 1974 Marriage Law into the picture. 

This law is crucial because it defines what constitutes marital property. In Indonesia, there are two types of property in a marriage: joint property (harta bersama) and separate property (harta bawaan). Joint property is anything acquired during the marriage, while separate property includes assets owned before the marriage or received as gifts or inheritance.

Why does this matter? Well, when someone passes away, the first step is to determine which assets are joint property and which are separate. Only the deceased’s share of the joint property is included in the inheritance. This can get tricky, especially if there’s no clear documentation or agreement. A will can help clarify these matters, ensuring that your intentions are respected.

Why a Last Will Matters

Here’s where the last will come into play. 

A will allows you to override the default rules of intestacy and decide exactly how your assets should be distributed. It gives you control and flexibility, which is something you and I both value.

For example, let’s say you want to leave a portion of your estate to a sibling who has been your rock through thick and thin. Or maybe you want to ensure that your spouse gets a larger share than what the default rules would allow. With a will, you can make these decisions. Without one, the law takes over, and your personal wishes may not be honored.

Under the Civil Code, a will is a legally binding document that must meet certain requirements. It must be written, signed, and witnessed. There are also different types of wills, such as holographic wills (handwritten by the testator) and testamentary wills. Each type has its own legal implications, so it’s important to choose the right one.

For Muslims, the Islamic Compilation Law allows for a wasiat, or Islamic will. However, there’s a key limitation: a wasiat can only allocate up to one-third of the estate to non-heirs. The remaining two-thirds must be distributed according to Faraid. This means that while a wasiat gives you some flexibility, it’s not as comprehensive as a will under the Civil Code.

Legal Grounds for a Last Will

Let’s break down the legal grounds that support the importance of a last will in Indonesia:

1. Civil Code (Kitab Undang-Undang Hukum Perdata). Articles 874 to 910 of the Civil Code govern inheritance for non-Muslims. These articles outline the default rules of intestacy but also recognize the validity of wills. Article 875, for instance, states that a person can dispose of their property through a will, provided it doesn’t violate the rights of legitimate heirs.
2. 1974 Marriage Law (Undang-Undang Nomor 1 Tahun 1974). Article 35 of the Marriage Law defines joint property and separate property. This distinction is crucial in determining what assets are subject to inheritance. A will can help clarify how these assets should be distributed, reducing the risk of disputes.
3. Islamic Compilation Law (Kompilasi Hukum Islam). Articles 194 to 209 of the KHI cover inheritance for Muslims. These articles emphasize the principles of Faraid but also allow for a wasiat. Article 195, for example, permits a wasiat for up to one-third of the estate, provided it doesn’t harm the rights of legitimate heirs.

The Risks of Not Having a Will

You might be wondering, “What’s the worst that could happen if I don’t have a will?” Well, let me tell you, the risks are real. Without a will, your estate could become the subject of disputes among your heirs. Family relationships can be strained, and in some cases, the matter might even end up in court.

For example, let’s say you own a piece of land that’s highly valuable. If you don’t specify how it should be divided, your heirs might argue over who gets what. This can lead to delays, legal fees, and emotional stress for everyone involved. A will can prevent these issues by providing clear instructions.

Another risk is that your assets might not go to the people or causes you care about most. If you want to leave a legacy for a charity, a friend, or even a distant relative, a will is the only way to ensure that happens. Otherwise, the default rules of intestacy will apply, and your wishes might be overlooked.

How to Create a Will in Indonesia

1. Creating a will in Indonesia isn’t as complicated as you might think. Here are the basic steps:
2. Decide what you want to include. Take stock of your assets and think about how you want them to be distributed. Don’t forget to consider any debts or obligations.
3. Choose the right type of will. If you’re non-Muslim, you can choose between a holographic will and a testamentary will. If you’re Muslim, you can create a wasiat, keeping in mind the one-third limitation.
4. Consult a legal expert. It’s always a good idea to consult a lawyer like Wijaya & Co to ensure your will is legally valid and aligns with your wishes.
5. Keep it updated. Life changes, and so should your will. Review it periodically to make sure it still reflects your intentions.

Final Thoughts

You and I both know that life is unpredictable. 

We can’t control everything, but we can take steps to protect our loved ones and ensure our wishes are respected. In Indonesia, a last will is one of the most powerful tools for defying intestacy and taking control of your legacy.

Whether you’re guided by the Civil Code, the 1974 Marriage Law, or the Islamic Compilation Law, the message is clear: don’t leave your estate to chance. By creating a will, you’re not just planning for the future. You’re taking care of the people and causes that matter most to you. And in the end, isn’t that what truly counts?

My name is Asep Wijaya. Thank you for reading my posts!